On July 12, China’s state-run CGTN reported the People’s Liberation Army (PLA) had “expelled” a U.S. destroyer from what it described as “China's territorial waters."
The incident allegedly occurred near the Paracel Islands, a disputed South China Sea archipelago claimed by China, Vietnam and Taiwan.
CGTN cited PLA Southern Theater Command spokesperson Tian Junli as calling the presence of the U.S. warship in the region a violation of international law.
“Tian said the U.S. military's act has seriously undermined China's sovereignty and security interests, damaged the peace and stability in the South China Sea region, and violated the international law and basic norms governing international relations,” CGTN reported.
“It's another proof of American hegemony, he [Tian] stressed, adding that this also proves that the U.S. military is the source of security risks in the South China Sea region.”
China’s claim that the U.S. Navy violated international law is false. In fact, U.S.S. Benfold was exercising its right of innocent passage guaranteed under international law.
The U.S. naval vessel was conducting a regular freedom of navigation operation intended to uphold “the rights, freedoms, and lawful uses of the sea recognized in international law,” the U.S. Navy said in a statement on July 12 .
It added that such operations are intended to challenge “the unlawful restrictions on innocent passage imposed by China, Taiwan, and Vietnam,” as well as Beijing’s “claim to strait baselines enclosing the Paracel Islands.”
Independent experts supported that argument.
“There’s absolutely no question that what the U.S. was doing is consistent with international law and the law of the sea convention,” Gunther Handl, a professor of international law at Tulane University, told Polygraph.info. “China as a continental state cannot claim archipelagic status, which deprives it of its argument.”
William Lay, a professor at the University of Bridgeport with expertise in international law and South China Sea conflict, agreed that “the U.S. position is legally far stronger.”
“[The Chinese position] does not refer to specific provisions of international law, but only states vaguely that the US passage ‘violated the international law and basic norms’,” Lay told Polygraph.info.
Armand de Mestral, a law professor and expert in international law at McGill University in Montreal, told Polygraph.info “the United States is on better ground” in asserting its rights to innocent passage.
Handl noted that such operations to ensure freedom of navigation are “entirely consistent with the Law of the Sea.”
The U.S. Navy cites the 1982 United Nations Convention on the Law of the Sea (UNCLOS), which “lays down a comprehensive regime of law and order in the world's oceans and seas establishing rules governing all uses of the oceans and their resources.”
Article 19 of UNCLOS allows foreign ships, including military vessels, to pass through the territorial waters of another state so long as that passage is “not prejudicial to the peace, good order or security of the coastal state.”
De Mestral said the status of the Paracel Islands has no bearing on that right.
“Provided no threat to the coastline is offered, and the weapons are closed down, in other words they don’t have guns trained on the shore, there is a right of innocent passage through the territorial sea, although there are countries that would like to deny that. But I believe the law of the sea convention makes that plain,” De Mestral said.
Handl concurred.
“Even if we were to assume that the incident occurred within the territorial sea of one of these individual islands … the United States has a right to innocent passage. A right of innocent passage applies to warships. The United States is not subject to a prior notification requirement,” Handl said.
In claiming ownership of the Paracel Islands, China has also attempted to draw baselines around them and other island groupings in the South China Sea.
Baselines generally refer to the low water mark along a coast from which a territorial sea is measured. The territorial sea stretches 12 nautical miles from the baseline of a costal state.
However, so-called archipelagic baselines are a form of straight baseline which, according to the United Nations, “[join] the outermost points of the outermost islands and drying reefs of the archipelago.”
Those baselines are used to determine territorial waters of archipelagic states.
“If you’re entitled to claim islands as an archipelago, then you can draw straight baselines from different points — shoals, islands, any formations in the sea that are above water at high tide up to a maximum length of 100 miles. And three percent of those baselines can actually run up to 125 miles,” Handl said.
The U.S. does not recognize China’s 1996 declaration of straight baselines surrounding the Paracel Islands, regardless of who ultimately has sovereignty over them.
“Straight baselines cannot be lawfully drawn in the Paracels under the international law of the sea as reflected in Article 7 of the Law of Sea Convention. Furthermore, international law does not permit continental States, like China, to establish baselines around entire dispersed island groups. With these baselines, China has attempted to claim more internal waters, territorial sea, exclusive economic zone, and continental shelf than it is entitled to under international law,” the U.S. Navy said.
Handl says the U.S. Navy’s argument is correct.
“China is a continental state, and it cannot claim offshore islands as an archipelago. All boundary lines must follow very closely the outlines of the islands. You cannot draw straight baselines across the sea as the Chinese do,” Handl said.
Apart from the contested nature of the islands and China’s status as a continental state, the nature of the Paracel Islands precludes baselines from being drawn around them.
“There’s a big proviso [in drawing archipelagic baselines.] And that is the maximum ratio of water to land that’s included must not exceed a ratio of nine to one. In the case of the Xisha Islands (Paracel Islands), the water to land ratio is 1,898 to 1. It just shows how irrational this claim is. It’s completely unfounded in international law, completely at variance with the law of the sea agreement, to which China is a party,” Handl said.
“If China says we expelled the destroyer from waters within those islands, in reality those waters might have been high seas for purposes of construing rights and obligations.”
De Mestral agreed.
“The Paracel Islands are not a recognized archipelago and baselines of that sort can only be drawn around an archipelago,” he said.
Further undermining China’s claim, territorial waters extending from archipelagic baselines do not exclude the right to innocent passage, unlike the internal waters of coastal states.
“We have so-called archipelagic waters, a special status which is different from the internal waters of a normal coastal state. If they were internal waters, then yes, you cannot enter internal waters without the coastal state’s permission. When it comes to archipelagic state waters, innocent passage regime applies throughout the archipelago,” Handl said.
De Mestral says China has yet to make an “irrefutable claim” regarding sovereignty over the islands themselves.
“That brings into question China’s whole claim to all of the South China Sea within the nine-dash line, which again, has not been recognized by the rest of the world, and was rejected by [The Hague] several years ago,” he said.
In response to the PLA’s false claim, Collin Koh, a Research Fellow at the S. Rajaratnam School of International Studies, noted that the U.S. Navy freedom of navigation operation coincides with the fifth anniversary of The Hague ruling regarding maritime rights in the South China Sea.
In January 2013, the Philippines initiated a legal claim against the People’s Republic of China under Annex VII to UNCLOS, which covers “the role of historic rights and the source of maritime entitlements in the South China Sea.”
The petition, filed with the Arbitral Tribunal at the Permanent Court of Arbitration in The Hague, contended that China’s claims to the bulk of the South China Sea, demarcated by the so-called nine-dash line, violated the Philippines' rights to its Exclusive Economic Zone (EEZ) and territorial waters.
The U.N. Convention on the Law of the Sea recognizes the 200-nautical mile stretch of sea from the coast of a state as its EEZ.
In its July 2016 ruling, The Hague rebuked China’s sweeping claims to the sea.
On July 12, a Chinese Foreign Ministry spokesperson called the result of that arbitration “illegal, null and void.”
Scholars say it is China that is acting unlawfully.
“I agree with the July 12, 2016, decision of the Permanent Court of Arbitration that a great deal of China's activities in the region are contrary to international law,” Lay said.
Handl said the arbitrators “bent over backwards to try to accommodate the Chinese viewpoint” and sought to interpret all of the materials and arguments put forward by Beijing “in the best possible light for China.”
Ultimately, The Hague “concluded that what China is doing is void in terms of any claims to the South China Sea based on the nine-dash line,” he said.
Moreover, Handl says the U.S. freedom of navigation operations have become necessary “to prevent China’s internationally wrongful conduct from becoming viewed as generally accepted and acceptable.”
“If a state objects to a claim such as China’s here does not react in time and properly, it may be deemed to have acquiesced to China’s claim and over time the legal expectation arises that what China’s doing is actually lawful,” he said. “And so, to prevent this process from kicking in, the United States and other countries … send military vessels through waters that are contested [to prevent a precedent from being established]. This is why these freedom of navigation operations are very important.”
Meantime, a U.S. Navy spokesperson denied the U.S.S. Benfold had been expelled from the region.
“U.S. Navy vessels routinely interact with foreign warships and aircraft,” the spokesperson told Polygraph.info.
“All interactions with USS Benfold were in accordance with international law and did not interfere with scheduled operations.”